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GITMO Detainees: What Are the Options?

January 22, 2009

Jackie Ogburn

In one of his first acts in office, President Obama ordered the closing of the Guantanamo Bay detention camp within a year and the immediate halting the military trials of detainees. The order did not resolve the question of what is to be done with the detainees, which was the topic of a Jan. 22 panel discussion at Duke University.

Organized by David Schanzer, visiting professor of public policy and director of the Triangle Center on Terrorism and Homeland Security, the panel included Peter Feaver, professor of political science and public policy, Madeline Morris, professor of law and director of the Duke Guantanamo Defense Clinic, and Scott Silliman, professor of the practice of law and executive director of the Center on Law, Ethics and National Security.

Schanzer presented a brief overview of the legal theory behind the creation of the detention center at the U.S. Naval Base in Cuba and the court decisions and new laws passed addressing the rights of the approximately 245 detainees that currently remain there. About sixty prisoners have been cleared for release, 100 are Yemeni citizens who the U.S. is considering repatriating to Yemeni custody, and the remaining 85 have had charges filed or cannot be tried because of lack of evidence or mistreatment, but are still considered dangerous.

“New law is needed to cover this type of conflict,” said Morris. She pointed out that the existing “Law of War” covers war between states and civil war, but does not address terrorist actions carried out by non-state actors.

When Congress authorized President Bush to use “all necessary force” in pursuing the people connected to the 9/11 attacks, detention of enemy combatants was considered part of that use of force.

Feaver, a former special advisor to the National Security Council in the Bush administration, said there are “painful trade-offs” in dealing with the remaining detainees. GITMO “has been a thorn in our relations with our allies,” he said, but for the Bush administration, the risk of releasing a detainee who might then go on to kill Americans was “too painful a threshold” to cross. On Jan. 23, The New York Times reported that former GITMO detainee Said Ali al-Shihri has become a leader in the Al Qaeda’s Yemeni branch, the first corroborated report of its kind. He is suspected of involvement in a September bombing of the U.S. Embassy in Yemen’s capital, Sana.

Legal precedent for the term “enemy combatant” stems from a case of World War II German saboteurs who dressed as civilians and were not treated as prisoners of war, said Silliman. In 2006, Congress defined an enemy combatant as anyone who had taken up arms against the United States or supported those who have taken up arms.

Bringing GITMO detainees into the U.S. would give them rights to greater legal protections, including habeas corpus. Silliman prefers the cases be tried in the military courts, instead of a newly created national security court, which then runs the risk of the detainees claiming double jeopardy. Silliman agreed with Morris that new law in needed to deal with the problem of long-term detention. He noted the U.S. Rep David Price (D-NC) has drafted a bill to address this.

“The hardest cases are the individuals that can’t be prosecuted, but the threat assessment is that they can’t be released,” said Schanzer. Releasing them to an allied country has not been an option under the Bush administration, as allies were reluctant to accept the detainees. There are signs this may be changing for the Obama administration.

“If it were an easy problem, they would have a solution now,” said Feaver.

The panel was sponsored by the Triangle Center on Terrorism and Homeland Security and the Duke Political Science Students Association.